OK, now this is getting really weird.
In another development in the Alaska public corruption investigation that can only be called stunning, the Department of Justice has requested that the Ninth Circuit Court of Appeals release former state Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla). Pursuant to this request, the two legislators convicted of crimes related to taking bribes from long-time VECO CEO Bill Allen would be free without having to post bail while the cases against them are sent back to the District Court to sort out newly discovered evidence that is apparently exculpatory.
In almost identical filings this afternoon in both cases, the Justice Department asked the appellate court to take this unusual step because a review of the Department’s files “has uncovered material that, at this stage, appears to be information that should have been, but was not, disclosed” to the attorneys of the two former legislators before their trials. In a sign of the importance of these motions, the Department issued a press release announcing them with quotes from Attorney General Eric Holder and Assistant Attorney General Lanny Breuer, head of the Department’s Criminal Division.
Given that the defendants’ attorneys obviously went along these government motions to set their clients free, it is highly likely that both Kott and Kohring will leave prison soon. Kott's attorney has asked the appellate court to keep his appeal alive while the District Court considers the case on remand. Both former state legislators filed appeals following their convictions in Anchorage in jury trials presided over by District Judge John W. Sedwick.
The Department’s review of its files in the Kott and Kohring cases began after Attorney General Eric Holder’s announcement on April 1 that he had decided to drop the case against former U.S. Sen. Ted Stevens (R.-Alaska) based on newly found discovery violations. Holder arranged for the setting aside of the jury verdicts against of Stevens—as well as the dismissal with prejudice of the indictment against him—more than five months after a jury in Washington, D.C. found Stevens guilty of seven counts of filing false disclosure statements that omitted his receipt of things of value primarily given by Allen.
We don’t know what evidence was not turned over in the Kott and Kohring cases. Given the substantial evidence against both men presented at their trials—which involved many conversations surreptitiously taped by the FBI that appeared to show their guilt—there seems likely to be some bombshell revelations coming out about (a) what Bill Allen told the federal investigators and prosecutors and/or (b) what his relationship was with them.
I’ll have more to say about this decision later. For now, I’ll go with these five points:
1. This is another big black eye for the federal probe into Alaska public corruption. Major mistakes were apparently made in fulfilling the government’s discovery obligations that shouldn’t have happened.
2. It is important to resist the temptation to pin these big errors on Alaska attorneys. Both before and after the blow-up following the Ted Stevens trial that led to new prosecutors being assigned to the Alaska public corruption cases, the decisions in these cases were being made out of Washington, D.C.
3. Unlike Ted Stevens, Kott and Kohring are not out of the legal woods. The Department of Justice has not asked the court to dismiss the indictments against Kott and Kohring, the step that the Attorney General decided to take with Ted Stevens that ended up preventing any new trial for the ex-U.S. Senator. So the convictions of Kott and Kohring are still on the books, and even if those convictions are set aside the two former legislators could still face new trials as long as the indictments against them still stand. Based on today’s developments, however, lawyers for Kott and Kohring will now move to get the indictments against their clients totally thrown out.
4. Speaking of defense attorneys, all the lawyers for the people who have been charged or fear being charged in the federal investigation are either rubbing their hands together in glee or exchanging ecstatic high fives tonight.
5. Whatever errors have been made in the course of the investigation and prosecution of these cases, the federal probe into Alaska public corruption has revealed many things involving Alaska public officials that are seamy and unseemly. Alaskans should think about what those revelations say about Alaska’s public officials and about what Alaska public life has become.
Administrative Note: Alaska Public Radio Network interviewed me this afternoon about these developments and their significance, and you can probably hear me on your favorite public radio station tomorrow (Friday) morning.